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Remarks before the 6th Annual Aviation Litigation Seminar, Marriott Marquis, Times Square
Jim Hall
6th Annual Aviation Litigation Seminar, Marriott Marquis, Times Square

Good afternoon. It is a pleasure to be with you for the 6th Annual Aviation Litigation Seminar. I appreciate the opportunity to join in your discussion about issues that are of importance to us all.

As I looked over your agenda for today's seminar, I was pleased to see that many of the speakers and guests who attended the Board's symposium we held in April on "Transportation Safety and the Law" are here, and that we can continue the dialogue on parallel criminal and safety investigations.

I am equally pleased to see many new individuals here who can add new insights to our discussions. I'm hopeful that the discussion we began in April will provide a useful foundation for you to build upon.

The genesis for the Board's symposium was our 1999 symposium on the expanded use of recorded data in all modes of transportation to both enhance safety and increase economic efficiency. The participants at that symposium generally agreed that the intelligent use of recorded data could improve operational safety but there were inherent risks. Many expressed concerns about whom would have access to that data besides safety investigators and how it might be used. The upturn in the visibility of parallel safety and criminal investigations added exponentially to those fears.

As a result of those concerns, I asked the General Counsel to develop an agenda for this year's symposium that would provide an opportunity for all interested parties to debate the legal aspects of collecting and using accident-related data.

    To achieve that goal, we eventually focused the symposium's agenda on two issues - (1) the use of data in safety and criminal investigations and civil litigation versus the privacy rights of individuals and companies from which that data is obtained; and (2) the criminalization of accident investigations.

Before I go on, let me briefly explain how our investigative process works. As many of you know, our investigations are unique; they are fact-finding proceedings without the formality of legal proceedings. They are not conducted to determine the rights or liabilities of any person - rather they are conducted to ensure the safety of our transportation system and the American people who use it.

Although the length and depth of investigations can vary, depending upon an accident's complexity, each is conducted using our party process. Groups of specialists, led by a Board investigator, are formed to develop the investigative record in areas such as operations, maintenance, and survival factors. These specialists represent those organizations with a relevant interest in the investigation. Typically, these will include the operator, the manufacturers, the regulators, and the unions.

Often, the Board will hold a public hearing to gather additional information. A verbatim transcript of the testimony and a copy of all exhibits are included in the public docket created for that accident. At the conclusion of the investigation, a Board report, containing the facts, conclusions, probable cause and any safety recommendations, and approved by the five Presidentally appointed, Senate-confirmed Board Members, is published.

In essence, over the years, the Board has become the repository for information on how to prevent accidents - or, as I like to say, we're a repository for what not to do.

In addition to the documentary record, which can be thousands of pages, our investigators are available to provide testimony in court cases. Because they often have firsthand access to evidence that may not otherwise be available or we may have conducted examinations and tests that cannot be duplicated, our investigators can be an invaluable source of information. But, since we have a small staff of less that 450 employees nationwide and an enormous workload, the scope of that testimony is limited by rules that have been refined over three decades.

Investigators cannot testify in court in civil cases, although they routinely provide depositions regarding factual information and what they saw and did. They can also authenticate documents we generate or receive, describe tests and examinations of physical evidence, and sponsor photographs they took.

With this evidentiary foundation, parties to the litigation can then have their own experts offer opinions on the issues involved in the lawsuits. Employees are not permitted to give opinion or expert testimony at trial so that we can avoid injecting ourselves into liability battles, protect the nature of our investigations, and conserve our employees' time. Although the Board's report is statutorily barred from use or admission in actions for damages, the underlying factual information is readily available in the public docket.

That said, the Board's report is often influential in the settlement of cases. Our findings frequently overlap issues under litigation and they carry substantial weight because of the Board's reputation as an independent, expert, neutral body.

One recent court decision centered on the way we conduct investigations and the prohibition against the admission of Board reports into evidence. Two companies, Chiron and PerSeptive, the owner and manufacturer of a DNA synthesizer, were parties to our investigation into a fire onboard a FedEx flight transporting that equipment.

They filed suit to force the Board to provide them the aircraft's cargo manifest because, as parties, they believed they were entitled to it. In effect, they wanted the Board to act as the transfer agent for FedEx's customer list. Because we considered the manifest to be proprietary information and not germane to the investigation, we did not give it to them.

In a unanimous opinion issued by the Chief Judge of the U.S. Court of Appeals for the DC Circuit (Chiron v. NTSB, volume 198, Federal Reporter, 3d series, page 935 (D.C. Circuit Court 1999)), the court made a number of observations and findings favorable to the Board. The court began by describing the unique attributes of the NTSB and noting that "The Board has used [its] broad powers wisely, achieving notable successes in its work and receiving high praise for the integrity of its investigative processes."

Chiron had argued that information in the Board's report could be used against it in court. However, the court decisively dispensed with that argument - relying on the congressional provision that no part of a report of the Board could be admitted or used in a civil action for damages. It also differentiated, just as our rules do, between the Board's reports containing our findings and our investigators' factual reports documenting the facts of the investigation.

The court stressed that Congress did not intend for the Board or its reports to be used to advantage or disadvantage any party in a civil lawsuit and concluded that admitting Board reports into evidence would "have the unsavory affect of embroiling NTSB in the interests of civil litigants." The admissibility of Board reports has been the subject of controversy for many years. We are guardedly optimistic that the Chiron decision will finally settle the issue.

The Court also categorically rejected the petitioners' argument that as parties to the investigation they were entitled to the cargo manifest - indicating that "There is no statute, regulation, or any other source of law that secures for parties to an NTSB investigation unfettered access to all information garnered by the Board."

I want to share one of the court's comments that those of us with law degrees may find to be a less than ringing endorsement of our profession. During oral arguments, the Chief Judge indicated that it was the court's desire to allow the Board to do its job and to keep it out of litigation. Using a few choice words, he said that "It is rare that we can do that in D.C., and we are trying very hard to keep lawyers from screwing that up with this agency." Unfortunately, given the litigious nature of our society, such challenges to our procedures and authority may continue.

    Of course, there are those who aren't parties to the investigation who believe that all of the information gathered by the Board should be made available to the public - and much of it is via the docket. However, some material, such as the cockpit voice recorder (CVR) tape, cannot be made public, except in transcript form. Similarly, there are those who want us to be more restrictive about what we release.

    Both sides of the argument were well represented at the symposium - the former by many of your associates, the latter by representatives from the labor unions and pilots' associations. It became clear during the discussion that the potential for public release of recorded data or the possibility of its use for prosecution or litigation will delay the implementation of new technologies such as the cockpit video recorders unless a compromise can be found that satisfies the employees' privacy concerns and protects that data from unwarranted release - both here in the United States and around the world.

    This isn't only an issue in the United States; it's becoming an international problem. New Zealand recently passed a law that regulates the disclosure and admissibility of certain accident investigation information. Among other things, the law prohibits the use of statements made to investigative authorities in civil or criminal cases and prevents the use of CVR recordings or transcripts in criminal proceedings.

    Some are calling for just such a law here - whether that happens may depend on how well the various investigative activities can be coordinated and whether suitable protections can be put in place to protect the rights of those involved. However, there are other efforts being made to work toward the same goal. The NTSB has asked, in its reauthorization request, that the same protections given to the CVR be extended to video recordings. And, in the Federal Aviation Administration's (FAA's) latest reauthorization, Congress told the Administrator to issue a notice of proposed rulemaking to develop procedures to protect air carriers and their employees from enforcement actions for violations, other than for criminal or deliberate acts, that are reported or discovered as the result of voluntary reporting programs such as the Flight Operations Quality Assurance (FOQA) Program.

    Just this past Tuesday, USA Today carried a front page story on British Airways' effective use of a similar program as well as an excellent discussion of the impediments delaying the program's full implementation here. Once again, the debate centers on who will have access to the information and how it can be used.

    The question of how and when investigative information can be used can greatly impact our ability to investigate an accident. We have always relied on individuals to tell us what happened in an accident - and usually they did so - even if somewhat reluctantly. But, what has been reluctance to cooperate may become refusal to cooperate. The aftermath of the pipeline accident in Bellingham, Washington last year has shown this to be true. Following the explosion and fire, a criminal investigation was immediately launched into the accident and - 12 months later - we still haven't been able to talk to most of the individuals who were operating the pipeline when it ruptured.

As a result, serious safety issues - issues that could possibly lead to another accident - have not been addressed and may not be in the foreseeable future.

    As you can imagine, this topic was heavily debated during the symposium. But, in the end, most of the participants reached a consensus that the accident and criminal investigative organizations need to have a coordinated agreement on how future investigations will be conducted. The agreement must address when a criminal investigation should be initiated and how safety investigations will be conducted to ensure that evidence and information are properly protected. There were obvious differences of opinion about whether criminal investigators should wait for the Board's investigation to mature before deciding to initiate criminal proceedings.

The Chief of the Department of Justice's (DOJ's) Environmental Crimes Section indicated that DOJ will seek to prosecute deliberate acts that involve a history of corporate noncompliance, high-level decisions to take an action or refrain from taking it, a wide scale level of risk of harm to the public or individuals, and/or an obstructionist company. Rarely, are any of these factors evident until well into an investigation. When they do arise, Board procedures require investigators to immediately notify the appropriate authorities that we have uncovered evidence of an intentional act. During the symposium, we were gratified to hear Tom Scott, whose experience with ValuJet and Fine Air put him in the ranks of the most knowledgeable individuals on this issue, indicate that in the typical case, NTSB's investigation should go first.

    However, if we expect prosecutors to rely on our fact gathering, the Board realizes that it must ensure that it conducts its investigation so that evidence is protected. Congress, in the upcoming NTSB reauthorization, may very well command what we already agree is necessary - far more explicit and comprehensive pre-incident protocols. A procedural agreement might well specify how evidence would be collected and identified, how witnesses would be interviewed, how document requests would be handled, and how testing would be conducted, At the minimum, it will open avenues for communications and provide a backdrop for cooperation.

All these issues are negotiable among agencies whose ultimate purposes are largely compatible. But I should add a caveat - the NTSB will not compromise its ability to test materials when safety is at risk and failure to test could allow a situation to continue to exist that could lead to another accident.

    This last point needs some elaboration. We have had a significant delay in the Bellingham, Washington pipeline accident investigation. The matter has been resolved, but too much lawyering went on before we were able to test the physical evidence of that tragedy. We have gone through this before, in the civil context. Some of you may recall the problems encountered in testing fan blades after the Sioux City, DC-10 accident in the late 1980s. NTSB procedures essentially became the ward of a court, and ultimately we compromised our way of doing business to prevent unacceptable litigative delays.

We compromised, but then went back to Congress and asked for a reemphasis of the fact that NTSB choices about testing physical evidence are made within its sole discretion. Congress did not hesitate, and we think that would also be the case in the criminal context.

Our testing produces reliable, dependable and unbiased data. We think that is what counts and we would vigorously resist permitting courts in the criminal venue from routinely reviewing our intentions before we can act.

    A recent editorial in Aviation Week & Science Technology shows that these issues remain problematic and more work needs to be done to resolve them. The editor wrote that my efforts to discourage criminal prosecutors from attempting to find criminal fault while the Board is still investigating an accident suggests that the Board believes that criminally negligent or willful misconduct should not be punished.

The article also stated that I am concerned that the lawyers are getting out of hand...and that the prosecutions of the SabreTech employees may prove to be an impediment to accident investigation in the future. Nothing could be further from the truth.

We do not believe that criminally negligent or willful misconduct should go unpunished. But, we do believe that the Safety Board should be provided the opportunity to conduct its investigations without interference from criminal prosecutions. The Board's intent is not to prevent prosecutions, but rather to prevent them from preempting or thwarting a thorough safety investigation of a transportation tragedy.

    And, contrary to the editor's assertion, the SabreTech prosecution is an example of exactly how prosecutors and accident investigators can and should work together to accomplish our mutual goals.

As I said following the SabreTech indictments in July 1999, "I appreciate the respect that both federal and state authorities demonstrated for the work of the Safety Board. Our investigation was permitted to proceed without undue entanglements and the Board issued its final report in August 1997.

I think this case shows that, mindful of each others' needs, both the Safety Board and law enforcement authorities can fulfill their responsibilities without hindering the work of the other."

The prosecution stemming from the 1997 Fine Airlines accident in Miami is another example of how safety and criminal investigations can work successfully in tandem. I believe that this is precisely what Congress envisioned when it gave our accident investigations priority over investigations by other federal agencies almost two decades ago.

This system has worked well and has helped minimize questions about lead-agency status. As part of our recent reauthorization request, we sought legislative clarification to ensure that NTSB will continue to be in a position to exercise coordinated leadership in future transport tragedies.

The House-passed provision ensures leadership by the NTSB and reinforces the presumption in favor of NTSB priority unless the Attorney General, in consultation with the Chairman of the NTSB, determines and notifies the Board that circumstances reasonably indicate that the occurrence may have been caused by an intentional criminal act. Our reauthorization is pending in the Senate, and we are hopeful that Congress will clarify and strengthen our position.

Although we didn't reach any definitive solutions during the symposium, we did air everyone's concerns and gave everyone much to consider. Over a very productive two days, we developed a number of relevant issues, including the use of accident and investigation information in criminal proceedings; concerns about the First Amendment and the media's access to information; and an individual's Fourth, Fifth, and Sixth Amendment rights.

Speakers introduced other issues, such as the corporation's versus an individual's representation by counsel; privacy issues; victims families' access to investigative information; concerns over the foreign release of information; and parallel local, state and federal criminal investigations.

In the end, I hope we all came away with a better understanding that the more information we have, the safer we can all be. We can enhance the safety of our transportation systems and protect those who use them. And we can do it in the confines of the best judicial system in the world.